Clermont, FL asked in Copyright, Intellectual Property and Patents (Intellectual Property) for Florida

Q: Is it possible to patent something ..

for Example . Plant grow tent. If I took the basics of the tent , such as the building part of it and how it’s put together . However I changed the material used and actually used it for something totally different would I be able to patent that or stop other companies from selling the same thing ?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: Your short question includes many key questions of patent law.

1) You do not infringe a patent. You infringe one or more specific independent claims (ones that start with no reference to another claim) and possibly some dependent claims (a claim that adds additional limitations to at least one other claim).

2) You infringe a claim under the all elements rule by having every noun, every verb, and every relationship required by the claim. In some special circumstances some nouns or verbs are stretched to include some alternatives that achieve substantially the same function in substantially the same way to achieve substantially the same result. (sorting out these close calls under the "doctrine of equivalents" will require a patent attorney).

3) Thus, if you provide the same sort of benefits with your plant grow tent as another provider does but no claim in their patent has a good match for all the required elements in that claim to your product, you are not infringing. You are simply competing which is encouraged.

4) If you are infringing one of their patent claims but add some bells and whistles to your plant tent to add another feature, then you are still infringing. You may be able to get your own patent on a plant tent with that added features and prevent the first company from adding that feature. You might be able to cross license patent rights with the first company to trade access to your patent to access to their patent (and possibly some money paid to them as they have the broader patent).

As you can see, this gets complicated quickly. You will need help from a competent patent attorney to lead you forward. The good news is that patent attorneys help people get patents under a federal license so you can chose a patent attorney to help you get patents from anywhere in the country.

I think you would benefit from going through my slide set to teach entrepreneurs about basic patent concepts as you seem to have a thirst for understanding - not just simple answers. http://bit.ly/Protecting_Advantages

You may also benefit from tips on patent searching in this slide set http://bit.ly/Patent_Searching

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

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